BancorpSouth Bank, Inc. v. Dios et al
MEMORANDUM OPINION & ORDER, Plf's 18 Motion for Summary Judgment against Michael F. Dios is GRANTED as set out, & judgment will be entered by separate order for damages in the total amount of $139,421.34 as set out. Signed by Judge Callie V. S. Granade on 1/10/2014. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
BANCORPSOUTH BANK, INC.,
MICHAEL F. DIOS and JUDITH
) CIVIL ACTION NO. 13-248-CG-C
MEMORANDUM OPINION AND ORDER
This matter is before the court on plaintiff’s motion for summary judgment
against defendant, Michael F. Dios. (Doc. 18). After review of the pleadings and in
light of the fact that defendants have not opposed summary judgment, the court finds
that plaintiff’s motion is due to be granted.
Plaintiff, BancorpSouth Bank, Inc., filed this action seeking damages
resulting from the defendants’ alleged default on a loan and promissory note
executed on or about January 3, 2007, in the principal amount of $352,000.00. (Doc.
1). Default judgment was entered against defendant Judith A. Dios on September
19, 2013. (Doc. 13). Plaintiff moved for summary judgment against Michael F. Dios
on December 10, 2013. (Doc. 18).
The motion for summary judgment states that the loan at issue was secured
by a mortgage on certain property in Baldwin County, Alabama, which plaintiff
foreclosed upon on July 22, 2011. (Doc. 19, p. 1). After applying the net foreclosure
sale proceeds and all other credits to the loan balance plaintiff contends that Mr.
Dios owes plaintiff the principal amount of $114,182.46, accrued interest of
$14,892.07 as of December 2, 2013, attorney’s fees and expenses of $9,797.69, plus
additional interest at the rate of $14.08 per day from December 2, 2013 through the
date of judgment. (Doc. 19, p. 2).
Any party opposing the motion was ordered to file a response in opposition on
or before December 31, 2013. (Doc. 20). To date no opposition has been filed. On
January 3, 2014, plaintiff and defendant Michael F. Dios filed a joint motion for
extension of time for filing their report of the Rule 26(f) planning meeting. (Doc. 21).
In the joint motion, the parties noted the pending summary judgment motion and
stated that defendant Michael F. Dios “does not intend to contest the motion.” (Doc.
21, ¶ 4).
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall
be granted: “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” The trial court’s function is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party "must make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rest on the mere allegations or
denials of the [non-moving] party’s pleading, but .... must set forth specific facts
showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(e) “A mere
‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal quotation and
“In opposing a motion for summary judgment, a ‘party may not rely on his
pleadings to avoid judgment against him.’” Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 592 (11th Cir. 1995), cert. denied sub nom., Jones v. Resolution Trust
Corp., 516 U.S. 817 (1995)(citing Ryan v. Int’l Union of Operating Eng’rs., Local
675, 794 F.2d 641, 643 (11th Cir. 1986)). Moreover, “ [t]here is no burden upon the
district court to distill every potential argument that could be made based upon the
materials before it on summary judgment. Rather, the onus is upon the parties to
formulate arguments; grounds alleged in the complaint [or answer] but not relied
upon in summary judgment are deemed abandoned.” Id. at 599 (citations omitted).
There being no opposition to plaintiff’s motion, the court, after review of the
pleadings, finds the motion is due to be granted.
For the reasons stated above, plaintiff’s motion for summary judgment
against defendant, Michael F. Dios. (Doc. 18) is GRANTED and judgment will be
entered by separate order for damages in the total amount of $139,421.34
(representing $114,182.46 in principal, accrued interest of $14,892.07 as of
December 2, 2013, attorney’s fees and expenses of $9,797.69, plus additional
interest of $549.12).
DONE and ORDERED this 10th day of January, 2014.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?